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WIPO suggests RapidShare might own “rapid” after all

Kevin Murphy, September 3, 2010, Domain Policy

RapidShare has won a UDRP complaint against the owner of rapidpiracy.com, after the WIPO panelist apparently went against recent precedent.
As I’ve been reporting for a while now, RapidShare has been trying to clean up its brand by filing UDRP complaints on domains that contain its trademark.
In pretty much all cases the offending domain hosts a web site containing links to copyrighted material hosted on rapidshare.com and other file-sharing services.
In most cases, the domain also includes the word “rapidshare”, which the company has trademarked.
In July, a WIPO panelist rejected RapidShare’s claim on rapidbay.net, concluding that the words “rapidbay” and “rapidshare” were not sufficiently alike to warrant an “identical or confusingly similar” finding.
Now, a different WIPO panelist has come to the opposite conclusion, finding for the complainant in the case of rapidpiracy.com; “rapidshare” and “rapidpiracy” are apparently confusingly similar.
Acknowledging the precedent could have been “fatal” to RapidShare’s case, Matthew Harris drew a distinction, arguing that “piracy” and “share” are conceptually similar, whereas “bay” was not.

it is not fanciful to suggest the term “rapidpiracy” can be read as involving a conceptual allusion to the Complainants’ mark (perhaps suggesting an illegal version of the Complainants’ services).

He backed this argument by pointing to the fact that there were three references to RapidShare on the first page of rapidpiracy.com, before the complaint was filed.

In short, an obvious inference from this content is that the Respondent intended the Domain Name to be understood as alluding to the Complainants’ mark.

Harris noted that WIPO guidelines say that panelists should not take into account the contents of a web site in order to determine whether the domain name is similar to a trademark, but he had an excuse.

The test is not of similarity between businesses or websites. It involves a comparison between mark and domain name only. However, that does not mean that the content of the website cannot in some cases provide a pointer as to how Internet users will perceive a domain name that in turn might inform the relevant comparison.

(Domain Name Wire has previously noted that Harris has a record of “questionable” decisions.)
He concluded:

So do these factors provide sufficient similarity in this case? Bearing in mind that this is a low threshold test and in the absence of argument to the contrary, the Panel ultimately concludes that the Complainants have satisfied that test. The Complainants have only just crossed the threshold and in doing so they were given a helping hand by the Respondent; but they have crossed it nevertheless.

In my humble opinion there’s no doubt that rapidpiracy.com were a bunch of scoundrels, but I can’t help but wonder whether UDRP was the right place to address the problem.
Yet the precedent has been set; RapidShare does have some claim on the word “rapid” under UDRP, despite its lack of a trademark.
What this means for the UDRP case against rapid.org, which is also in the business of helping people share copyrighted material, remains to be seen. I’m told that case has been assigned the same panelist.

RapidShare has no rights to “rapid”, says WIPO

Kevin Murphy, July 14, 2010, Domain Policy

RapidShare, the file-sharing service that recently embarked upon a spree of UDRP filings against domain name registrants, has lost its first such case.
A WIPO panelist denied the company’s claim on RapidBay.net, saying it had “not proved that they have any trademark or service mark rights in the expression ‘rapid bay’, or in the word ‘rapid'”.
RapidShare therefore failed to prove that “RapidBay” was identical or confusingly similar to its RapidShare trademark, and the complaint was thrown out.
The decision does not bode well for the company’s ongoing UDRP claims over rapid4me.com, rapidownload.net, rapidpiracy.com and rapid.org, among others.
Rapid.org’s registration, in particular, would appear to be safe, if the panelist in that case follows the same line of reasoning.
That will no doubt please the many people visiting my previous post recently, apparently looking for an explanation of why Rapid.org, a forum for sharing mainly copyrighted works, recently started bouncing to Bolt.org.
RapidShare has in recent months filed a couple dozen UDRP complaints against people who have registered “rapid” domains and are using them to help people find pirated material on the service.